Shell v. The Missouri Pacific Railway Company

• Decision Date: 29 June 1908
• Parties: P.V. SHELL, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

112 S.W. 39

132 Mo.App. 528

P.V. SHELL, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 29, 1908

Appeal from Barton Circuit Court.--Hon. Henry C. Timmonds, Judge.

Judgment affirmed.

John A Davis and R. T. Railey for appellant.

(1) If the section men were guilty of no negligence as held by the court below, then no common law right of action could possibly arise under the facts in this case. At common law the defendant was not required to fence its track or put in any cattle guards. Barney v. Railway, 126 Mo. 388; Turner v. Thomas, 71 Mo. 596; Hughes v Railroad, 66 Mo. 325; Hill v. Railway, 49 Mo.App. 535, 121 Mo. 481; O'Riley v. Diss, 41 Mo.App. 188; Dooley v. Railway, 36 Mo.App. 387. (2) It is now well settled in this State, that a party by his pleading must state the facts on which he seeks to rely, and if his pleading is ambiguous it is the duty of the court to construe it most strongly against him, and this too without any motion having been made requiring the petition to be made more specific and certain. Snyder v. Free, 114 Mo 367; Overton v. Overton, 131 Mo. 566; Young v. Schofield, 132 Mo. 661; Boles v. Bennington, 136 Mo. 528; Leete v. Bank, 141 Mo. 581; Sidway v. M. L. & L. S. Co., 163 Mo. 372; Mallinckrodt C. Wks. v. Nemnich, 169 Mo. 397. (3) It is to meet just such emergencies as this, which has impelled the appellate courts to construe the plaintiff's petition strictly, when it is couched in ambiguous language. There is only one count in the petition, and it is too plain for argument that plaintiff could not attempt to recover in the same count under the common law and under the statute at the same time. Rhea v. Railway, 84 Mo. 345; Sullivan v. Railway, 72 Mo. 197; Luckie v. Railway, 67 Mo. 246; Edwards v. Railway, 66 Mo. 569; Cary v. Railway, 60 Mo. 209; Grant v. Railway, 56 Mo.App. 65; Waldhier v. Railway, 71 Mo. 518; Hite v. Railway, 130 Mo. 136; McManamee v. Railway, 135 Mo. 447; Huston v. Tyler, 140 Mo. 263; McCarty v. Hotel Co., 144 Mo. 402; Chitty v. Railway, 148 Mo. 74; Bartley v. Railway, 148 Mo. 139; Feary v. Railway, 162 Mo. 96; Pryor v. Railway, 85 Mo.App. 378. (4) If this action was intended to be brought under section 1105, Revised Statutes 1899, then the petition fails to state a cause of action, for the reason, that it does not charge that there was any collision between defendant's car and plaintiff's animal. Lafferty v. Railway, 44 Mo. 291; Seibert v. Railway, 72 Mo. 565; Halferty v. Railway, 82 Mo. 90; Foster v. Railway, 90 Mo. 119; Yeager v. Railway, 61 Mo.App. 595. (5) And the rule is, that where there is a doubt, such a statute ought not to be construed to inflict a penalty, which the Legislature may not have intended. Rixke v. Tel. Co., 96 Mo.App. 410; State ex rel. v. Bland, 144 Mo. 534; Connell v. Telegraph Co., 108 Mo. 459; Rozelle v. Harmon, 103 Mo. 343; Manz v. Railway, 87 Mo. 281, and cases cited.

Cole, Burnett & Moore for respondent.

(1) Counsel experience considerable difficulty in determining what kind of an action this is. There is no need of mental anxiety on this subject. Even conceding, for argument, that the petition comes under neither of the sections mentioned, still it certainly states a good common law cause of action for negligence in failing to comply with the statutory duty of maintaining a good cattle-guard. Boggs v. Railway, 18 Mo.App. 274; Goodwin v. Railway, 75 Mo. 73; Bradford v. Railway, 64 Mo.App. 479; Hill v. Railway, 66 Mo.App. 190. (2) And this, too, notwithstanding the prayer for double damages; such prayer does not determine the character of the action. Geiser v. Railway, 61 Mo.App. 462. (3) Counsel seem to think that although the company was negligent in not providing at statutory cattle-guard, yet if the section men were not negligent in their manner of trying to drive the animal out of her dangerous position, no case is made. There is no law for such a contention. If defendant was guilty of negligence in failing to comply with a statutory requirement, then it was not exonerated by absence of negligence in trying to drive the animal out. Morrison v. Railway, 27 Mo.App. 418; Boggs v. Railway, 18 Mo.App. 278; Nagel v. Railway, 75 Mo. 661; Banks v. Railway, 40 Mo.App. 464; Iba v. Railway, 45 Mo. 472; Sappington v. Railway, 95 Mo.App. 393; Riley v. Railway, 89 Mo.App. 378. (4) Counsel's exhaustive essay on "Pleadings" might be interesting to study at leisure, but it surely has no application to the case at bar. R. S. 1899, sec. 592; Braxton v. Railway, 77 Mo. 458.

OPINION

ELLISON, J.

This is an action for damages arising from the death of plaintiff's mare and he obtained judgment in the circuit court for one hundred and twenty-five dollars. Defendant appealed to this court, but on account of it having set up in its answer that sections 1105 and 1106, Revised Statutes 1899, were unconstitutional, we transferred the case to the Supreme Court. The case was argued in that court, but it came to the conclusion that the constitutionality of those sections was not involved, since defendant had not presented such question to the trial court and the latter court had not made any ruling thereon (202 Mo. 339) and returned the case to this court for determination.

The facts necessary to state are these: Defendant's road at and near the place where the animal was killed was fenced on each side with a lawful fence of barbed wire. That where the road crossed a highway there was a cattle-guard so negligently and defectively constructed and so negligently maintained that animals could pass over it onto defendant's right of way so enclosed by the barbed wire fence. That further on there was a culvert over which the defendant's track was laid and where fences or "wings" connected with said parallel fences enclosing the right of way. The result of this condition being that an animal getting onto the right of way over the cattle-guard could not proceed further up the track or right of way between the fences than the culvert. Plaintiff's mare escaped from his enclosure and was at large. She came upon the highway and passed through the defective cattle-guard onto the right of way and while there defendant's section men propelling a handcar came up from below the cattle-guard thus being behind the mare. They saw her and stopped the car, when two of them got off and endeavored to get ahead of her so as to drive her back through the cattle-guard off of the right of way. We are satisfied there was evidence tending to show that she was frightened, by the noise made by the handcar before it stopped, and ran into the barbed wire fence where she was so badly cut that she soon died.

The petition charges that the section men were operating the handcar and by reason of the appearance or noise ordinarily made by running the car and the exertions and noise intentionally made by the men for the purpose of scaring the mare so frightened her as to cause her, in her effort to escape, to throw herself upon the wire fence near the culvert whereby she was killed. "That her death was so occasioned by defendant's neglect to construct and maintain according to its duty in the premises, at the point where the pretended cattle-guard above mentioned was situated, cattle-guard sufficient to prevent horses, cattle and mules and all other animals from getting on the railroad, and by the act and conduct of defendant's servants as aforesaid." The petition then alleged the value of the mare to be $ 125 and proceeded to state that, "under the statute in such cases made and provided plaintiff is entitled to damages in a sum double the value of the mare, to-wit: two hundred and fifty dollars. That plaintiff after his said mare was killed, and on and before the--day of April, 1902, demanded of defendant payment of the value of said mare. That defendant has failed, neglected and refused to pay."

"Wherefore plaintiff asks judgment for the sum of two hundred and fifty dollars ($ 250), double the value of said mare killed, and that he recover of the said defendant interest thereon at the rate of six per cent per annum from the date of filing this petition, and that an attorney's fee be fixed by the court and taxed as costs herein against the defendant, at such sum as may be a reasonable compensation for all legal services herein rendered for the plaintiff, and for the costs generally in this action by plaintiff expended."

The defendant did not offer any evidence. The trial court held that there was no negligence in operating the handcar, nor in the act of the men in endeavoring to drive the mare. That court likewise held that plaintiff was not entitled to double damages, nor to attorneys' fees, and gave the following instruction for plaintiff:

"If you shall believe from the evidence that the cattle-guard referred to in the testimony was not reasonably or ordinarily sufficient to prevent horses from passing over or through the same onto defendant's railroad and right of way, and that by reason thereof plaintiff's mare did pass over or through the same onto defendant's railroad and right of way, and that said railroad and right of way were then enclosed with wire fences so that said mare could not safely escape therefrom except by returning to and over said cattle-guard, and that, while said mare was so inclosed on said railroad and right of way, she became frightened at the appearance of, and the noise ordinarily made by, the defendant's handcar while the same was being operated and run by defendant's section hands on said railroad, and that while so frightened, and by reason thereof, said mare threw herself upon or against one of defendant's said wire fences and that she was thereby killed, then you should return a verdict in favor of the...